SC1197

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 2 OF 2012

BETWEEN:

ELIZABETH MICHELLE COX
Appellant

AND

DAVID HUNTER COX
Respondent

Waigani: Salika DCJ, Gabi & Sawong, JJ
2012: 13 August
28 September

SUPREME COURT – Practice and procedure – application for objection to competency – grounds for objection to competency mainly on the basis that notice of appeal states matters of fact only and should be preceded by leave application -none of the grounds of appeal are errors of law or mixed law and facts - appellant required leave to appeal - as leave is not obtained, objection to competency of the appeal is upheld

Cases Cited:

Papua New Guinea Cases
Dillingham Corporation of New Guinea Pty Ltd vs. Constantino Alfredo Diaz [1975] PNGLR 262 at 270
Haiveta vs. Wingti (No. 2) [1994] PNGLR 189

Counsel:

G. Poole, for the Applicant
M. N. Wilson, for the Respondent

DECISION

28th September, 2012

1. BY THE COURT: Introduction: This is an objection to the competency of an appeal filed on 23rd January 2012 and served on the respondent on 14th May 2012. The grounds for the objection are:

(i) That the appellant filed the Notice of Appeal on 23rd January 2012 but did not serve it on the respondent until 14th May 2012 and in the intervening period the respondent complied with the Orders of the National Court regarding payment of maintenance and delivery of chattels to the appellant. The delay of four (4) months in serving the Notice of Appeal constitutes a gross abuse of the process of the court;

(ii) The Notice of Appeal states matters of fact only, and not matters of law or mixed fact and law, and cannot be advanced without prior leave of the Court pursuant to s. 4 of the Supreme Court Act;

(iii) The Order sought in paragraph 4(a) of the Notice of Appeal, which is quash the whole of the judgment in MC No. 17 of 2011 handed down on 28th December 2011, would amount to miscarriage of justice arising out of a gross abuse of process because the appellant has received all payments ordered by the National Court prior to service of the Notice of Appeal;

(iv) The appellant seeks to quash the whole of the judgment or Order of the National Court which includes seeking an order to quash the dissolution of marriage when s.64 of the Matrimonial Causes Act States that an appeal does not lie from a Decree of Dissolution of Marriage which has become Absolute. The Decree in this cause has become Absolute.

Background

2. The brief facts are that the appellant and the respondent were married in 1994. In 2012, the respondent petitioned the court for dissolution of marriage on the basis of desertion for a period of not less than two (2) years. The appellant failed to file an answer to the petition. In her affidavits, the appellant failed to refute the respondent's claim that she left the matrimonial home after unhappy differences arose and that she deserted him. In other words, the appellant failed to explain and refute the claim that she deserted him. On 28th December 2011, the court made a decision in the matter.

First, third and fourth grounds of objection

3. The first and third grounds can be dealt with together as they relate to delay in the service of Notice of Appeal and payment of maintenance. The delay is not substantial and does not in any way prejudice the respondent, who was ordered to make certain payments within a specific time frame. He was duty bound to comply with the orders of the court. With respect to the fourth ground of objection, we note that the Notice of Appeal was filed on 23rd January 2012 and the Decree Nisi became Absolute on 27th January 2012. The appeal was filed before the Decree Nisi became Absolute. Accordingly, we dismiss the first, third and fourth grounds of objection.

Second ground of objection

4. The second ground arises from the grounds of appeal in the Notice of Appeal. Accordingly, we set out the grounds of appeal below:

"3. A. The learned trial Judge erred in law and in fact in finding that the Appellant had willfully deserted the Respondent for a period of not less than two (2) years.

 Particulars: The Appellant lived apart from the Respondent at the request of the Respondent to look after the children who were in school in Australia.

 B The learned trial Judge erred in law and in fact in finding that the Respondent had not condoned or connived the ground of desertion and had not colluded with another with intent to cause a perversion of justice;

 C The learned trial Judge erred in law and in fact in dissolving the marriage solemnized on 6 February 1994 between the parties;

 D The learned trial Judge erred in law and in fact in ordering property, settlement, maintenance and custody of the children based on his findings above.

E The Appellant's materials evidence and facts in defence to the Respondent's petition which were relevant to these proceedings was, through no fault of the Appellant, not made known to the Court before the proceedings were finalized.

5. The question is whether the grounds of appeal raise questions of fact where leave to appeal is required under section 4(2)(c) and 14(1)(c) of the Supreme Court Act. What is a question of fact? What are questions of fact and law has been settled in this jurisdiction. Kearney DCJ said in Waghi Savings and Loan Society Ltd v Bank of South Pacific (1980) SC 185 (Kearney DCJ, Andrew, J, and Kapi J.):

"What are questions of fact and law are difficult to determine. On this question Lord Denning said:

'On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by a process of reasoning from the, if and in so far as those conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the primary facts,' 

See British Launderers' Research Association vs. Central Middlesex Assessment Committee and Hendon Rating Authority (1949) I All E.R. 2111 at pp. 25 and 26. This same passage was referred to by the then Deputy Chief Justice, Prentice, in the case of Dillingham Corporation of New Guinea Pty . Ltd, vs. Constantino Alfredo Diaz (1975) PNGLR 262 at p.270.

Where primary facts are found (which cannot be challenged on appeal except by leave of the court) the question of law is what is the proper conclusion to be drawn from those facts. It has been shown in decided cases that where inferences or conclusions are drawn from these primary facts which cannot reasonably be drawn, then this si an error of law. See Edwards (Inspector of Taxes) vs. Bairstow and Another (1956) A.C. 1413; Instrumatic Ltd, vs Suprabrase LT, (1969) 1 WLR 51914. I cannot see anything in the circumstances of this country that would render these principles inapplicable. I adopt them as part of the underlying law (Schedule 2:2 of the Constitution)."

6. The passage from Lord Denning's judgment was also cited by the Supreme Court in Sidi Adevu vs. MVIT [1994] PNGLR 57; Oio Aba vs MVIL (2005) SC 799 (Injia DCJ, Sawong J, and Lay J,); Unasi Martin and Serah Martin vs. MVIT (2007) SC 896 (Batari J., Lay. And Hartshorn J.) and The City Administrator vs. Yambuaran Pausa Saka Ben Ltd (2009) SC 965 (Gavara-Nanu J., Batari J. and Gabi J.).

Ground 3A

7. The Court was petitioned to dissolve the marriage on the grounds of desertion. The appellant failed to file an Answer to the Petition. Secondly, the appellant failed to provide evidence to refute the respondent's claim that she deserted him. Finally, counsel for the appellant stated thus; "she has not effectively defended her position and has conceded on desertion." (Objection Book, page 55 lines 37 and 38).

8. The learned trial Judge found that the appellant gave no clear evidence and stated:

"In her three Affidavits, sworn 10 November, 2010, 11 February, 2011 and 15 April, 2011, Elizabeth has failed to state clearly the evidence she presents to refute David's claim that she left the matrimonial home after unhappy differences arose, and that she deserted him in 2004. Much of what she said goes to her arguments that the matter should be dealt with in the Family Court, she view that David has failed to fully disclose his financials and assets." (Objection Book, page 39 lines 8 to 15 and page 76 lines 10 to 25).

9. We agree with counsel for the respondent that the findings arose out of factual evidence alone and that it is a question of fact which requires leave to advance an appeal.

Ground 3 B

10. We agree with counsel for the respondent that this was an undefended Petition and that the only mention of the words "condoned", "connived" or "colluded" appear in the judgment and transcript of 28th December 2011 where His Honour stated:

"There has been no claim that David has condoned or has connived the desertion of Elizabeth section 27 Matrimonial Causes Act. I have perused all the material that is before this court including the submissions of the parties and I find that there is nothing to raise concern and prohibit the grant of the decree of dissolution of marriage. Further, the facts and circumstances do not warrant the exercise of discretion to refuse or grant, section 29 Matrimonial Causes Act." (Objection Book, page 40 lines 10 to 20 and page 77 lines 20 to 30).

11. This is clearly a question of fact and leave is required.

Grounds 3C and 3D

12. Counsel for the respondent submitted that these grounds fail to state the error into which it is said that the learned trial Judge fell which offends against Order 7 Rule 9 of the Supreme Court Rules. Secondly, the Orders of the Court were agreed to by the appellant and it is not appropriate that she should now wish to resile from them.

13. In Pacific Equities & Investments Ltd vs. Teup Goledu (2009) SC 962 the Supreme Court (Davani J., Cannings J. and Manuhu J.) said:

"13. In Ipili Porgera Investments Ltd vs. Bank South Pacific Ltd SCA No. 15 of 2006, 27.06.07 the Supreme Court indicated that there are three requirements arising from Order 7, Rules 8 (c) and 9 of the Supreme Court Rules.

14. Rules 8 (c) states:

 The notice of appeal shall … state briefly but specifically the grounds relied upon in support of the appeal.

15. Rule 9 states:

Without affecting the specific provisions of Rule 8, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.

 16. The three requirements are:

1. The ground relied on in support of the appeal must be stated briefly, but specifically.

2. If it is alleged that a judgment is against the evidence or the weight of the evidence, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the ground relied on to demonstrate that it is against the evidence or the weight of the evidence.

3. If it is alleged that the judgment is wrong in law, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law.

17. The Supreme Court explained in Haiveta vs. Wingti (No.2) [1994] PNGLR 189 that these requirements exist for two reasons:

•	the respondent must be informed of the basis of the appeal so they can prepare their arguments; and

•	the court must be informed of the issues to be determined.

18. If the notice of appeal fails to meet those requirements, the Supreme Court has discretion to strike out the offending ground(s) of appeal. Examples of cases where it did that are Haiveta vs. Wingti (No. 2) [1994] PNGLR 189, Henao vs. Coyle (2000) SC 696. Alternatively, the Court could dismiss the entire appeal as incompetent. If, for example, all of the grounds set out in a notice of appeal were defective in that they failed to comply with the requirements of Order 7, Rules 8 (c) and 9, the natural conclusion to draw would be that the appeal is incompetent."

14. In Simon Kou v Simon Kaupa (2010) SC 1021 (David J, Gabi J. and Kariko J), it was held that the matters listed under Order 7 rule 8 of the Supreme Court Rules are mandatory and failure to comply with them is fatal to the competency of the appeal.

15. We agree with counsel for the respondent that these grounds are contrary to Order 7 Rules 8(c) and 9 of the Supreme Court Rules. Accordingly, we strike out grounds 3C and 3D.

Ground 3E

16, Counsel for the respondent submitted that this is not a proper ground of appeal in that it does not allege any error of law or of fact which could be the basis of overturning a finding or decision of the Court. Secondly, the appellant had access to lawyers and ample opportunity to present her case.

17. We agree that this is not a proper ground of appeal. It appears to be a statement without any factual basis.

18. We are of the view that none of the grounds of appeal are errors of law or mixed law and facts. They are questions of facts which require leave of the Court. The appellant requires leave to appeal. As leave is not obtained, we uphold the objection to competency of the appeal. The appellant is to pay the respondent's costs to be agreed if not taxed.

_____________________________________________
Warner Shand Lawyers: Lawyers for the Appellant
O'Briens Lawyers: Lawyer For The Respondent